"'It is axiomatic that public policy requires that persons of full age
and competent understanding shall have the utmost liberty of contracting,
and that their contracts, when entered into freely and voluntarily, shall be
held sacred and shall be enforced by courts of justice; and it is only when
some other overpowering rule of public policy intervenes, rendering such
agreements unfair or illegal, that they will not be enforced.'"

Id. (quoting Eldridge et al v. Johnson, 195 Or 379, 405, 245 P2d 239 (1952)); see also
Prime v. Prime, 172 Or 34, 40, 139 P2d 550 (1943) ("The obligation of contracts must be
respected and their terms enforced."); Edwards and Edwards, 73 Or App 272, 276, 698
P2d 542 (1985) ("when the parties voluntarily enter into a property and support
agreement, and the agreement is approved by the court and incorporated into the decree,
countervailing principles of public policy prevail and the parties' agreement generally will
be given effect").
The court also has described the public policy in terms of fairness and
equity to parties who enter into such agreements with the understanding that they are
enforceable:

"Where parties have foregone their opportunity to litigate disputes and have
chosen instead to enter into an agreement, their reliance on the agreement
can be presumed. Inequity may result if this court adopts a policy of less
than full enforcement of mutually agreed upon property and support
agreements."

McDonnal, 293 Or at 779; see also St. Sauver and St. Sauver, 196 Or App 175, 180, 100
P3d 1076 (2004) (quoting McDonnal).
At one time, when such agreements were incorporated into dissolution
judgments, contractual remedies were not available to enforce them; they were
enforceable only by means of the remedies that the law affords for enforcement of
judgments. Webber, 330 Or at 196. In 2001, however, the Legislative Assembly enacted
ORS 107.104, which includes both a strong declaration of support for the enforceability
of marital settlement agreements and a statement that--contrary to prior case law--such
agreements, whether incorporated into a dissolution judgment or not, are subject to
contract remedies:

"(1) It is the policy of this state:
"(a) To encourage the settlement of suits for marital annulment,
dissolution or separation; and
"(b) For courts to enforce the terms of settlements described in
subsection (2) of this section to the fullest extent possible, except when to
do so would violate the law or would clearly contravene public policy.
"(2) In a suit for marital annulment, dissolution or separation, the
court may enforce the terms set forth in a stipulated judgment signed by the
parties, a judgment resulting from a settlement on the record or a judgment
incorporating a marital settlement agreement:
"(a) As contract terms using contract remedies;
"(b) By imposing any remedy available to enforce a judgment,
including but not limited to contempt; or
"(c) By any combination of the provisions of paragraph (a) and (b)
of this subsection." (1)

The general rule that marital settlement agreements are fully enforceable
is subject to two exceptions, reflected both in the new statute and in the case law. The
first exception is that marital settlement agreements will not be enforced if doing so
would contravene the law. ORS 107.104(1)(b) (it is the policy of the state "[f]or courts to
enforce the terms of [marital settlement agreements] to the fullest extent possible, except
when to do so would violate the law"); McDonnal, 293 Or at 779 ("[S]hort of conflict
with the statutory powers of the court, we recognize the court's responsibility to discover
and give effect to the intent of the parties as reflected in the incorporated settlement
agreement.").
In Hutchinson and Hutchinson, 187 Or App 733, 69 P3d 815 (2003), for
example, we declared unenforceable a provision in a marital settlement agreement that
would make a modification of spousal support retroactive to a particular date, as the
parties had agreed. We concluded that the provision could not be reconciled with ORS
107.135(6), which provides that the court does not have power to modify a dissolution
judgment as to obligations that have accrued before the filing of the motion to modify.
Id. at 747.
In Hearn and Hearn, 128 Or App 259, 875 P2d 508 (1994), in contrast,
we upheld the validity of a provision in a marital settlement agreement that authorized the
court to reconsider spousal support some four years later, whether or not a change in
circumstances had occurred. We reached that conclusion because, among other things,
the provision did not "deprive the court of any statutory authority[.]" Id. at 265-66.
The second exception to the general rule of enforceability of marital
settlement agreements is that, even if enforcement would not directly violate the law, they
will not be enforced if doing so would contravene public policy. ORS 107.104(1)(b)
(marital settlement agreements are to be enforced "to the fullest extent possible" unless
enforcement "would clearly contravene public policy"); Hearn, 128 Or App at 265
("[N]egotiated agreements as to the amount and duration of spousal support should be
enforced unless they deprive the court of its statutory authority or contravene some other
overriding public policy.").
In Heinonen and Heinonen, 171 Or App 37, 14 P3d 96 (2000), for
example, we held unenforceable a provision in a marital settlement agreement that
delegated authority to determine parenting time to a nonjudicial third party. We reasoned
that the provision "is in conflict with the policy" at least implicitly reflected in relevant
statutes that, when parents cannot agree on the issue of parenting time, it is the courts--and not a third party--who should resolve the dispute in a way that protects the best
interests of the child. Id. at 144-45.
In contrast, in Pope and Pope, 73 Or App 242, 698 P2d 518 (1985), aff'd,
301 Or 42, 718 P2d 735 (1986), we enforced a provision in a marital settlement
agreement providing that the husband was to pay spousal support until a specified date,
even if the wife remarried before that date. We explained that we perceived no public
policy that would be advanced by not giving the parties the benefit of their bargain. Id. at
248.
Similarly, in Porter and Porter, 100 Or App 401, 786 P2d 740, rev den,
310 Or 281 (1990), we upheld the validity of a provision in a marital settlement
agreement requiring the husband to pay one dollar per month spousal support indefinitely,
the effect of which was essentially to artificially preserve the court's authority to modify
the award. We acknowledged that the court itself probably would have lacked authority
to make such a one dollar support award under the circumstances that existed at the time
of the dissolution. Id. at 403. Nevertheless, we concluded that the provision was valid,
because it had been freely negotiated by the parties and not imposed by the court. Id. at
403-04. "Courts should enforce, not disturb, negotiated settlement agreements," we
explained, "unless there is an overriding public policy reason for not doing so." Id. at
404.
And, more recently, in Eidlin and Eidlin, 140 Or App 479, 916 P2d 338
(1996), the parties agreed that the husband's spousal support obligation could be modified
based on the occurrence of events that, at least arguably, would not otherwise have
constituted a change of circumstances sufficient to justify a motion to modify. We
rejected the husband's contention that a stipulation that provides for a more permissive
basis for seeking modification than does the statute is unenforceable. We reasoned that,
as long as the stipulation does not purport to deprive the court of its statutory authority, no
public policy necessitates its rejection. Id. at 484.
With the foregoing principles in mind, we turn to the provisions of the
marital settlement agreement that are the focus of the parties' dispute in this case. As we
have noted, the agreement expressed the parties' intention to make the spousal support
award nonmodifiable; that much is clear and uncontested. In fact, the parties expressed
that intention in four different ways: (1) waiver of the right to seek modification; (2)
estoppel to seek modification; (3) indemnification should wife nevertheless seek
modification; and (4) deprivation of the court's statutory authority to modify. The
agreement also contained a severability clause. The trial court approved the agreement in
its entirety, including the severability and antimodification provisions.
In the modification proceeding, however, the trial court concluded that
the antimodification provisions were void as against public policy because they sought to
deprive the court of its statutory authority to modify spousal support awards. We agree
with the trial court up to a point. As we have noted, both statute and case law provide
that, although marital settlement agreements generally should be enforced to the fullest
extent possible, there is an exception for provisions that conflict with the statutory
authority of the courts. Hutchinson, 187 Or App at 745-46. In this case, one provision of
the marital settlement agreement expressly states the parties' intention "to divest the Court
of the jurisdiction conferred upon it pursuant to the provisions of ORS 107.135 pertaining
to modification of spousal support." That the parties cannot do.
That does not end the matter, however. As we have noted, the agreement
did not just purport to divest the court of jurisdiction to modify. It separately provided
that the parties also waived the right even to invoke the jurisdiction of the court and that
the parties are estopped from doing so. Merely because the provision purporting to divest
the court of jurisdiction to modify fails, it does not necessarily follow that the balance of
the agreement concerning the modification of spousal support fails with it. The parties,
as noted, included a severability clause, which requires that any provision that is invalid
be severed from the agreement, leaving the remaining provisions "in full force and
effect." The validity of the remaining provisions, including the waiver of the right to seek
spousal support, remains before us. We turn to that issue.
Because it is dispositive, we begin with the provision in which "[b]oth
parties waive any and all rights to modify the spousal support provision in this
Agreement." The validity of that provision turns on the application of the general rule
that the terms of marital settlement agreements are to be enforced to the fullest extent
possible unless doing so would contravene the statutory authority of the court or clearly
violate some other public policy. ORS 107.104(1)(b); McDonnal, 293 Or at 779.
The first question, then, is whether waiving the right to seek a
modification of spousal support contravenes the statutory authority of the court. Neither
party has identified a statute that conflicts with the waiver provision at issue, and we are
aware of none. It could be argued that the waiver indirectly interferes with the authority
of the court to modify spousal support awards as authorized by ORS 107.135, but we do
not find the argument persuasive. The waiver provision in this case has nothing to do
with the authority of the court; rather, it involves only whether the parties may invoke it.
ORS 107.135 provides that the court has authority to modify a dissolution judgment only
"upon motion of either party." Thus, the authority of the court to modify a dissolution
judgment always has been dependent on a decision of one of the parties to invoke its
authority by filing an appropriate motion. If a party who otherwise might have perfectly
good grounds for a modification motion decides, for any reason, not to file one, the court
is without authority to act. The parties' agreement in this case changes nothing in that
regard. It involves only a decision between the parties whether they will or will not file
such motions. They decided that they will not. The court's statutory authority remains
unchanged.
The second question is whether, even if the parties' agreement does not
contravene a statute, it nevertheless should not be enforced because doing so would
clearly violate some other public policy. Again, the parties have identified no public
policy that would be abrogated, and we can envision none.
In that regard, we note that adults with the capacity to do so generally are
free to waive a panoply of rights, statutory and constitutional, so long as the waiver is
knowing and intentional. See, e.g., Bennett v. Farmers Ins. Co., 332 Or 138, 156, 26 P3d
785 (2001) ("[T]his court has described the doctrine of waiver as applying broadly to any
contract term."); State v. Hunter, 316 Or 192, 199-200, 850 P2d 366 (1993) (waiver of
statutory right to speedy trial); Housing and Community Services Agency v. Long, 196 Or
App 205, 209, 100 P3d 1123 (2004), rev den, 338 Or 301 (2005) (waiver of statutory
right to seek eviction of tenant); State v. McKenzie, 195 Or App 318, 322, 97 P3d 1242
(2004) (waiver of constitutional right to counsel); DK Investment Co. v. Inter-Pacific
Development Co., 195 Or App 256, 263, 97 P3d 675 (2004) (statutory rights can be
waived if there is "a clear, unequivocal, and decisive act of the party showing such a
purpose"); McMillan v. Follansbee, 194 Or App 145, 154, 93 P3d 809 (2004) ("[I]t is
possible to waive a statutory right to partition, just as it is possible to waive other
statutory rights."); State v. Morrow, 192 Or App 441, 444-45, 86 P3d 70, rev den, 337 Or
282 (2004) (waiver of constitutional right to jury trial); State v. Kimsey, 182 Or App 193,
203, 47 P3d 916 (2002) (waiver of constitutional double jeopardy protections); State ex
rel Juv. Dept. v. Cecil, 177 Or App 583, 588, 34 P3d 742 (2001) (waiver of Miranda
rights).
The general rule that statutory rights are subject to knowing and
intentional waiver has been applied to the right to various types of statutory support. In
Moore v. Schermerhorn, 210 Or 23, 307 P2d 483 (1957), for example, the Supreme Court
addressed the validity of a prenuptial agreement between a husband and wife providing
that "[e]ach of the parties hereto agrees to make no claim to the separate property of the
other party, either during the joint lives of the parties hereto or thereafter[.]" Id. at 30.
The dispute over the validity of the agreement arose when the wife died and the husband
attempted to claim the statutory right of a surviving spouse to homestead and exempt
property. The court first addressed whether prenuptial agreements generally are
enforceable. After answering that question in the affirmative, the court turned its
attention to whether a waiver of "claims of probate homestead and exempt property is
barred by supervening public policy." Id. at 39-40. In brief, the court found no such
supervening public policy. The court explained that, "[i]n view of the various ways in
which the homestead exemption can be waived, we cannot say that in this state there is
any paramount public policy adverse to such waiver[.]" Id. at 43. The same rule has been
applied to a surviving spouse's statutory right to an elective share of an estate. Sheldon v.
Sheldon, 163 Or App 256, 265, 987 P2d 1229 (1999) (waiver of statutory right to take
elective share); Simmons v. Simmons, 82 Or App 540, 544, 728 P2d 921 (1986) (same).
The rule also has been applied to agreements including provisions
waiving a spouse's entitlement to receive spousal support. To be sure, at one time, the
courts regarded such waivers as contrary to the state's interest in "the adequate support of
its citizens." Reiling v. Reiling, 256 Or 448, 450, 474 P2d 327 (1970). More recently,
however, the courts have embraced the application of the general rule to spousal support.
In Unander v. Unander, 265 Or 102, 506 P2d 719 (1973), the Supreme
Court addressed the validity of a provision in a prenuptial agreement waiving spousal
support. Expressly overruling Reiling, the court concluded that the better view is that "[a]
provision providing that no alimony shall be paid will be enforced unless the spouse has
no other reasonable source of support." Id. at 107.
Similarly, in Bridge and Bridge, 166 Or App 458, 464, 998 P2d 780, rev
den, 330 Or 553 (2000), the parties entered into a prenuptial agreement that included the
following provision:

"RELEASE OF MUTUAL PROPERTY RIGHTS. Husband and Wife
mutually waive any and all property rights in the separate property of each,
and further waive and release any claim for support that may accrue by
reason of their marriage that may arise by operation of law upon their
marriage."

The trial court declined to enforce the agreement according to its terms, and we reversed.
Citing Unander, we explained that a waiver of spousal support is fully enforceable as
long as the terms of the agreement as a whole are fair and equitable and the spouse is not
without reasonable means of support. Id. at 464-65; see also Simmons, 82 Or App at 544
("Express authority to waive spousal support is not required."); cf.Day v. Vitus, 102 Or
App 97, 792 P2d 1240, rev den, 310 Or 281 (1990) (upholding validity of prenuptial
agreement that included waiver of spousal support).
If no public policy forecloses the right of parties to waive spousal
support entirely, a fortiori, they can agree to waive the right to seek modification of
support. Thus, for example, in Pope the parties agreed that spousal support would not
terminate before a specified date, even if the wife remarried before then. When the wife,
in fact, remarried before the specified date, the husband contended that the agreement was
void and that the wife's remarriage constituted a change of circumstances that required the
termination of his support obligation. The wife invoked the agreement and urged the
continuation of support payments. We agreed with the wife. Although it is clear that the
parties cannot deprive the court of authority to modify, we explained, that does not mean
that the parties' agreement was not enforceable. Pope, 73 Or App at 248. Citing the
portion of McDonnal that emphasized the potential inequity of failing to enforce the
terms of marital settlement agreements, we concluded that, notwithstanding the court's
continuing authority to modify, "we perceive no public policy reason" for failing to
enforce the parties' agreement not to seek such modification. Id.
We are aware of dictum in one decision that broadly declares that parties
cannot agree to preclude modification. A closer examination of the decision, however,
reveals that the court was commenting on the validity of agreements eliminating the
authority of the courts to modify, not on the validity of waivers of the right of parties to
seek modification.
In Garnett v. Garnett, 270 Or 102, 105, 526 P2d 549 (1974), the parties
executed a marital settlement agreement requiring the husband to pay the wife certain
household expenses and further providing that the remarriage of the wife should not
relieve the husband of his obligations under the agreement. After both parties had
remarried, the husband moved for a modification of the support obligation, and the trial
court granted the motion. We reversed, concluding that we "should not save a person
from the bargain he makes under fair bargaining conditions, after he finds the
consideration unattractive." Garnett v. Garnett, 17 Or App 307, 312, 521 P2d 1054
(1974).
The Supreme Court reversed. The court explained that it "took review
of this case because we feared that the opinion of the Court of Appeals cast doubt on the
established law of this state concerning a trial court's authority to modify provisions of a
divorce decree." Garnett, 270 Or at 105. According to the court, the law is settled that
"provisions for support may be modified or done away with upon a showing of a
sufficient change of circumstances since the decree, despite any provision the agreement
and/or decree may have that the support provisions are not subject to change." Id. The
court went on to hold that, because of a substantial change in the parties' circumstances,
the trial court correctly modified the support obligation. Id. at 107-08.
It is clear to us that the court's statements concerned only the extent to
which any settlement agreement alters the authority of the courts. To begin with, the
agreement at issue said nothing at all about waiver of the right to seek modification; in
fact, the agreement in Garnett said nothing about modification at all. No one presented
any argument about the authority of parties to waive their right to seek modification, and
nothing in the opinion purports to address that issue. Moreover, the court itself explained
that it took the case to comment on "a trial court's authority to modify provisions of a
divorce decree." That is, it wished to address this court's apparent misconception that
marital settlement agreements generally are not subject to modification. Id. at 105.
That is precisely how we have since read Garnett. In Pope, the husband
contended that our decision to enforce the parties' agreement that remarriage would not
require immediate termination of spousal support was contrary to the court's decision in
Garnett. We disagreed. We explained that, after Garnett, "it is clear that the terms of an
incorporated settlement cannot deprive a court of its authority under ORS 107.135(1)(a)
and (2) to set aside, alter, or modify any obligation deemed to be support[.]" Id. at 248.
But that, we said, is all Garnett stands for. Id.
To sum up, then, we evaluate the validity of the parties' waiver provision
in light of the general rule that marital settlement agreements are to be enforced "to the
fullest extent possible," ORS 107.104(1)(b), unless doing so would violate the law or
clearly contravene some other public policy. We are unable to identify any law that
would be violated by enforcement of the parties' agreement. Likewise, we are unable to
identify any public policy that would be threatened by giving the agreement full effect.
We conclude that the parties' waiver of the right to seek modification of spousal support
is valid and enforceable. The trial court therefore erred in declaring the modification
provisions invalid and in granting wife's motion to modify. Because of our conclusion
concerning the validity of the waiver provision, we need not address the parties'
arguments about the remaining provisions concerning spousal support.
Husband also assigns error to the trial court's award of attorney fees to
wife. Normally, when we reverse a trial court's judgment, we also reverse the court's
award of attorney fees. See ORS 20.220(3)(a) ("If the appellate court reverses the
judgment, the award of attorney fees or costs and disbursements shall be deemed
reversed[.]"). In this case, however, the award of attorney fees and the imposition of a
contempt sanction appear to be intertwined. That is, we cannot tell if the trial court would
have imposed a contempt sanction in the amount of wife's attorney fees even if she did
not prevail. For that reason, the contempt matter must be vacated and remanded to the
trial court for reconsideration.
Judgment modifying spousal support reversed; judgment of contempt
vacated and remanded for reconsideration.

1.
ORS 107.104, enacted in 2001, "applies to marital annulment, dissolution or
seperation decrees entered before, on or after the effective date of this 2001 Act." Or Laws 2001,
ch 203, § 3. The effective date was May 25, 2001. Id. at § 10. In the same enactment, the
legislature also included a nearly identical provision that applies to settlement agreements arising
out of actions to modify dissolution judgments. Id. at § 4, now codified at ORS 107.135(13).